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2012
Jan
18

PROTECT-IP: the source

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Yesterday, I made a post about the PROTECT-IP Act, explaining in some detail why it's such a dangerous proposition. But if you're like me, maybe you're tired of hearing second-hand arguments. You're not scared of a little legalese, and you want to check out the original source, Senate resolution 968 itself. Well, great! That's what this blog is really (or at least tries to be) about, and that's what I'm going to do in this post.

I have two goals here. For one thing, I'm trying to correct some of the misinformation that may be floating around on the web about PIPA. But I also want to make the point that laws aren't as scary as you might think. When you take a good, close look at them, it's not that hard to understand what is being said — sure, not well enough to argue them in court (unless you're a lawyer), but you can get a pretty decent sense of what is and isn't allowed.

This comes with two standard disclaimers:

  1. I am strongly opposed to PIPA (and SOPA). This post is an attempt to convince others to share that view. But it's more of a justification of my opinion than a rant about it. I've tried to include enough direct quotes to make it clear why I oppose this bill, and to hopefully allow you to come to the same conclusion; I'm not saying you should agree with me just because I say so. The point: keep an open mind, and whatever opinion you have, make sure you know why you have it.
  2. I am not a lawyer and this is not legal advice. I make no guarantees about the correctness of this information. If you're concerned about specific effects that PIPA or SOPA could have on you personally, check with a lawyer.

Definition of Copyright Infringement

PIPA, for all the fuss people have been saying about it, really just builds on existing copyright laws. So it makes sense to start by examining those laws, which are contained in title 17 of the United States Code.

Title 17 is a very long document, but there are three short parts that are especially relevant for interpreting PIPA. First, section 106 (or in the standard notation, 17 U.S.C. §106) defines six rights that are reserved to the holder of a copyright:

Subject to sections 107 through 122, the owner of copyright under this title has the exclusive rights to do and to authorize any of the following:

(1) to reproduce the copyrighted work in copies or phonorecords;

(2) to prepare derivative works based upon the copyrighted work;

(3) to distribute copies or phonorecords of the copyrighted work to the public by sale or other transfer of ownership, or by rental, lease, or lending;

(4) in the case of literary, musical, dramatic, and choreographic works, pantomimes, and motion pictures and other audiovisual works, to perform the copyrighted work publicly;

(5) in the case of literary, musical, dramatic, and choreographic works, pantomimes, and pictorial, graphic, or sculptural works, including the individual images of a motion picture or other audiovisual work, to display the copyrighted work publicly; and

(6) in the case of sound recordings, to perform the copyrighted work publicly by means of a digital audio transmission.

In short: copying, modification, distribution, public performance or display, and broadcasting all require the copyright holder's consent. If you do any of these things without having permission from the copyright holder, this is defined by section 501 as copyright infringement.

(a) Anyone who violates any of the exclusive rights of the copyright owner as provided by sections 106 through 122 or of the author as provided in section 106A (a), or who imports copies or phonorecords into the United States in violation of section 602, is an infringer of the copyright or right of the author, as the case may be.

In addition to the six actions mentioned above, it's also illegal to provide specific information that allows someone else to bypass technological measures which prevent them from infringing copyright. For example, the contents of DVDs are encrypted, and distributing the software that allows people to break the encryption and use the DVD is illegal — unless you have permission from whoever owns the copyright on the DVD contents. Section 1201 has the details. It's kind of long, but here are some of the important parts:

(a) Violations Regarding Circumvention of Technological Measures.

(1)

(A) No person shall circumvent a technological measure that effectively controls access to a work protected under this title....

....

(2) No person shall manufacture, import, offer to the public, provide, or otherwise traffic in any technology, product, service, device, component, or part thereof, that—

(A) is primarily designed or produced for the purpose of circumventing a technological measure that effectively controls access to a work protected under this title;

(B) has only limited commercially significant purpose or use other than to circumvent a technological measure that effectively controls access to a work protected under this title; or

(C) is marketed by that person or another acting in concert with that person with that person’s knowledge for use in circumventing a technological measure that effectively controls access to a work protected under this title.

and so on. (If you're about to complain that I'm taking this out of context, great! Go read it yourself.)

The laws I've listed above, sections 501 and 1201, are referenced by the PROTECT-IP Act in its definition of "internet site dedicated to infringing activities." The following text occurs in section 2 of the bill:

(7) the term 'Internet site dedicated to infringing activities' means an Internet site that--

(A) has no significant use other than engaging in, enabling, or facilitating the--

(i) reproduction, distribution, or public performance of copyrighted works, in complete or substantially complete form, in a manner that constitutes copyright infringement under section 501 of title 17, United States Code;

(ii) violation of section 1201 of title 17, United States Code; or

(iii) sale, distribution, or promotion of goods, services, or materials bearing a counterfeit mark, as that term is defined in section 34(d) of the Lanham Act; or

(B) is designed, operated, or marketed by its operator or persons operating in concert with the operator, and facts or circumstances suggest is used, primarily as a means for engaging in, enabling, or facilitating the activities described under clauses (i), (ii), or (iii) of subparagraph (A);

This definition winds up being the legal basis for the enforcement procedures in later sections of the bill. In other words, if you get sued or prosecuted under PIPA, it will be because you allegedly violated one of these existing laws, 17 U.S.C. §501 or §1201. This is why, in my previous post, I wrote that PIPA doesn't add anything new to copyright infringement — for ordinary citizens, it doesn't make anything illegal that wasn't already illegal. It does require certain behaviors from ISPs, DNS providers, payment gateways, and advertisers, but we'll get to that later.

Legal Responses to Infringing Content

What PIPA does do is drastically increase the allowable penalties for having copyrighted material hosted on your site. This is one of the parts that many people find particularly objectionable about it (and SOPA).

DMCA Safe Harbor Provision

At issue is the fact that a lot of websites these days get much of their content from contributions by their users. And it's possible that some of those contributions are infringing material. Under the direct interpretation of 17 U.S.C. §501, the website hosting the content is legally liable for this, because by hosting the content and allowing others to download it, they are either distributing it or publicly displaying it, perhaps depending on how technically-minded you are.

Currently, the law that governs the consequences of online copyright infringement is the Digital Millennium Copyright Act. It's gotten its fair share of complaints, but it's nowhere near as restrictive as SOPA and PIPA. One of the main reasons the DMCA has been considered tolerable is codified in 17 U.S.C. §512, of which an excerpt follows:

(c) Information Residing on Systems or Networks At Direction of Users.—

(1) In general.— A service provider shall not be liable for monetary relief, or, except as provided in subsection (j), for injunctive or other equitable relief, for infringement of copyright by reason of the storage at the direction of a user of material that resides on a system or network controlled or operated by or for the service provider, if the service provider—

(A)

(i) does not have actual knowledge that the material or an activity using the material on the system or network is infringing;

(ii) in the absence of such actual knowledge, is not aware of facts or circumstances from which infringing activity is apparent; or

(iii) upon obtaining such knowledge or awareness, acts expeditiously to remove, or disable access to, the material;

(B) does not receive a financial benefit directly attributable to the infringing activity, in a case in which the service provider has the right and ability to control such activity; and

(C) upon notification of claimed infringement as described in paragraph (3), responds expeditiously to remove, or disable access to, the material that is claimed to be infringing or to be the subject of infringing activity.

This snippet is part of what is known as the Online Copyright Infringement Liability Limitation Act, at least according to Wikipedia. Most people just call it the safe harbor provision. Essentially, it means that if you're operating an online service on which somebody has uploaded material that infringes copyright, you're not legally liable for the infringement, as long as you take the material offline upon receiving a proper notice. This puts the primary responsibility for avoiding copyright infringement on the users who upload it, not on the host. It allows sites like Facebook, Wikipedia, and Reddit (and millions of others) to exist without having to actively monitor the material uploaded by their users for copyright violations.

PROTECT-IP

Under PIPA, it's a whole different story. This bill doesn't contain anything analogous to the DMCA safe harbor provision. What it does contain is the following piece, in section 3, which allows the U.S. Attorney General to obtain a court order calling for legal action against a foreign site (more on this later) suspected of copyright infringement.

(1) IN GENERAL- On application of the Attorney General following the commencement of an action under this section, the court may issue a temporary restraining order, a preliminary injunction, or an injunction, in accordance with rule 65 of the Federal Rules of Civil Procedure, against the nondomestic domain name used by an Internet site dedicated to infringing activities, or against a registrant of such domain name, or the owner or operator of such Internet site dedicated to infringing activities, to cease and desist from undertaking any further activity as an Internet site dedicated to infringing activities, if--

(A) the domain name is used within the United States to access such Internet site; and

(B) the Internet site--

(i) conducts business directed to residents of the United States; and

(ii) harms holders of United States intellectual property rights.

Note that all of the following measures can be imposed based on only a court order. Not a full trial. All that is needed is for a judge to sign off on it.

Later on in the section, PIPA specifies the actions that can be taken against alleged copyright infringers:

(d) Required Actions Based on Court Orders-

(2) REASONABLE MEASURES- After being served with a copy of an order pursuant to this subsection:

(A) OPERATORS-

(i) IN GENERAL- An operator of a nonauthoritative domain name system server shall take the least burdensome technically feasible and reasonable measures designed to prevent the domain name described in the order from resolving to that domain name's Internet protocol address....

This requires operators of DNS nameservers to remove all DNS records of the infringing domain, so the site can't be accessed by name. For example, if the DNS records for this site were removed, www.ellipsix.net would no longer resolve to my server's IP address, 69.164.216.133, and you would have to know those numbers in order to access this site. If the nameservers that hold these records are not under U.S. jurisdiction, ISPs would be required to present "fake" DNS records which lead you to the wrong website when you type the domain name into your browser. This would be a Bad Thing because the way DNS works, servers all over the world have to sync up with each other, and trust that they are in sync. PIPA's DNS provisions would break that, and instead require that U.S.-based DNS servers provide different information from foreign servers, which could potentially wreak havoc on the system. Besides, in practice, it's pretty easy to register another domain name for any given site, which makes this particular countermeasure fairly ineffective.

(B) FINANCIAL TRANSACTION PROVIDERS- A financial transaction provider shall take reasonable measures, as expeditiously as reasonable, designed to prevent, prohibit, or suspend its service from completing payment transactions involving customers located within the United States and the Internet site associated with the domain name set forth in the order.

This prohibits banks and other financial institutions (like PayPal) from brokering transactions between anyone in the United States and the infringing site. If this provision were invoked on an online business, it would completely shut down their ability to operate within the U.S. Or, applied to a nonprofit foundation, it cuts off their ability to receive donations from Americans.

(C) INTERNET ADVERTISING SERVICES- An Internet advertising service that contracts with the Internet site associated with the domain name set forth in the order to provide advertising to or for that site, or which knowingly serves advertising to or for such site, shall take technically feasible and reasonable measures, as expeditiously as reasonable, designed to--

(i) prevent its service from providing advertisements to the Internet site associated with such domain name; or

(ii) cease making available advertisements for that site, or paid or sponsored search results, links or other placements that provide access to the domain name.

This subparagraph prohibits online advertising agencies from displaying ads on the infringing site, and from displaying ads for the infringing site. Like the previous item, this would drastically limit an online business's ability to reach out to potential customers, and it also prevents sites of all sorts from gaining revenue by displaying ads. This is a reasonable tactic to take against websites that truly are devoted to infringing activities, because advertisements are often how they make their money. But without the proper procedures to ensure that it doesn't get misused, it's a dangerous provision.

(D) INFORMATION LOCATION TOOLS- An service provider of an information location tool shall take technically feasible and reasonable measures, as expeditiously as possible, to--

(i) remove or disable access to the Internet site associated with the domain name set forth in the order; or

(ii) not serve a hypertext link to such Internet site.

This last subparagraph requires search engines and similar sites, potentially including anything that links to other sites (i.e. any website in existence) to remove from their listings any results for the infringing site. Outside of China, most (useful) content on the web is found through U.S.-based search engines, specifically Google, Bing, and Yahoo. Forcibly removing a site from all their results will flat-out kill it.

Of course, as with the advertising clause, if a true copyright infringement site gets hit with this, then good, the law is working. But in a case of mistaken identity, overzealous prosecution, or judicial corruption (rare, but it happens), if a non-infringing site like Wikipedia is removed from search engine results, the consequences will be pretty disastrous. Just think, what would it be like if today's Wikipedia blackout were permanent, and you couldn't get around it by hitting Esc at the right time?

There are similar provisions in section 4 which allow the copyright holder (in addition to the Attorney General) to take similar actions. But there are a couple of key differences:

  • Section 4 applies to domestic sites, or rather domestic domain names, whereas section 3 applies to foreign domain names.
  • Section 4 only compels financial institutions and advertising networks to cut ties with the site. It doesn't say anything about DNS or search engines.

Still, that's a pretty heavy hammer to hit a site with. It may not take them entirely offline, at least not directly, but it does cut off the site's financial support, and any website that's reasonably popular needs that financial support to survive.

Proactive Takedowns

In sections 3 and 4, PIPA specifies that the U.S. Attorney General or a copyright holder can initiate legal action against a website they allege to be infringing copyright. But that's not the end of it. Section 5(a) goes beyond that and actually encourages financial institutions and advertising services to proactively cut off websites for suspected copyright violations by providing them with legal immunity for doing so.

(a) In General- No financial transaction provider or Internet advertising service shall be liable for damages to any person for voluntarily taking any action described in section 3(d) or 4(d) with regard to an Internet site if the entity acting in good faith and based on credible evidence has a reasonable belief that the Internet site is an Internet site dedicated to infringing activities.

In other words, as long as they act with a "reasonable belief" that the website is "dedicated to infringing activities", the financial institution or ad provider suffers no legal consequences for terminating their relationship with the site, regardless of whether the alleged copyright infringement turns out to be valid or not. There are a couple of problems with this: first of all, it encourages what is effectively virtual vigilante justice, in which websites are subject to disciplinary action, with legal force, but without going through the full process of the American justice system. But perhaps more worrying is the fact that "reasonable belief" can be twisted to mean all sorts of things. Admittedly I can understand Congress's motivation to give companies some flexibility to stamp out online copyright infringement — but when you have the ability to completely "bury" a website, that ability needs to be strictly controlled.

Applicability

PIPA uses the phrase "nondomestic domain name" in several places, especially in section 3, which (if you remember) specifies the actions that the Attorney General can bring against foreign sites with a court order. Some supporters of the bill argue that this provision prevents it from being used against, for lack of a better term, "good" websites — the ones that are obviously not copyright infringers, and are just trying to make the internet a better place.

But there's a problem with that. Look at the definition in section 2:

(9) the term 'nondomestic domain name' means a domain name for which the domain name registry that issued the domain name and operates the relevant top level domain, and the domain name registrar for the domain name, are not located in the United States;

The internet is a global network, where boundaries between different countries often get blurred. It's not at all uncommon that a website uses a domain name from one country, a registrar in a different country, and a hosting service in yet another country. For example, a lot of major websites operate URL shorteners whose domain names, like bit.ly, are registered with foreign registrars to take advantage of various two-letter country codes. All of those qualify as nondomestic for purposes of PIPA. On the other hand, a website registered with a U.S. domain name won't necessarily operate in the U.S. In particular, the major top-level domains like .com and .net are operated by American registrars. Many sites thus qualify as domestic under PIPA even though the U.S. government ostensibly no jurisdiction over them.

Besides all that, the fact is that many internet companies have multinational operations. Domain name registrars can have servers in many different countries, and can distribute their operations among these servers in various ways, which potentially allows the domains they host to be considered either domestic or nondomestic depending on when a court order is issued against them. Many larger websites themselves have operations in multiple countries — they may host files on content delivery networks which have servers around the world, and they may hold multiple domain names registered in different countries. Example: Google holds google.com, google.ca, google.co.uk, and a whole bunch of others. All of this makes it pretty murky to determine whether any given website is actually considered domestic or nondomestic, and there's no guarantee that the answer you get will really make sense.

Conclusions

So what are we going to do about all this? If you agree that these bills would be dangerous for the internet, contact your senators and representatives and ask them to vote against SOPA (H.R. 3261) and PROTECT-IP (S. 968)! Information on how to do that is all over the web, especially on several of the major websites which are blacked out today:

  • Wikipedia will show you contact information for your representatives based on your ZIP code
  • Google lets you add your name to a petition that will demonstrate the level of nationwide opposition to the bills
  • Reddit is a continuing source of information (decidedly in opposition) on both bills
  • American Censorship maintains a contact form for your representatives in Congress
  • The full text of each bill can always be accessed through the Library of Congress:

  • You can also have a look at some other posts I've written about these bills

  • Finally, get out and spread the word among your friends!
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